Citation Nr: 9819966
Decision Date: 06/30/98 Archive Date: 07/06/98
DOCKET NO. 95-25 284 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUES
1. Entitlement to former prisoner of was status for
Department of Veterans Affairs (VA) purposes.
2. Entitlement to service connection for malaria.
3. Entitlement to service connection for measles.
4. Entitlement to service connection for residuals of a
facial injury.
5. Basic eligibility for non service-connected pension
benefits.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. McCormack, Associate Counsel
INTRODUCTION
The veteran had recognized active service from July 1943 to
February 1946. This matter comes to the Board of Veterans’
Appeals (Board) from a VA Manila Regional Office (RO)
September 1994 decision which denied a claim for prisoner of
war status for VA purposes; a May 1995 decision which denied
a claim for basic eligibility for non service-connected
pension benefits; and a February 1997 rating decision which
denied claims of service connection for malaria, measles, and
residuals of a facial injury.
In a December 1997 rating decision, the RO also denied claims
of service connection for post traumatic stress disorder,
pulmonary tuberculosis, a prostate disability, vision
impairment, and hearing loss. In February 1998, the veteran
filed a notice of disagreement with regard to these issues.
These issues have neither been procedurally prepared nor
certified for appellate review, and are therefore referred to
the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that while performing duties under the
direction of the United States Army, he was taken and held
prisoner by the Japanese in May 1942. He further contends
that he incurred malaria, measles, and a facial injury during
his period of service; and that he served as a guerilla in
the Philippine Commonwealth Army.
The veteran maintains that he is entitled to prisoner of war
status for VA purposes, service connection for malaria,
measles, and residuals of a facial injury, and a non service-
connected pension as a result of his periods of recognized
guerilla service and his service in the Philippine
Commonwealth Army.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that that the preponderance of the evidence is
against the claim for former prisoner of war status for VA
purposes.
It is the decision of the Board that the veteran has not met
the initial burden of presenting evidence sufficient to
justify a belief by a fair and impartial individual that the
claims of service connection for malaria, measles, and
residuals of a facial injury are well grounded.
It is the decision of the Board that the veteran is not
eligible for VA non service-connected disability pension
benefits as a matter of law.
FINDINGS OF FACT
1. The service department has not verified that the veteran
was on active service when his reported capture during May
1942 by Japanese forces took place.
2. The veteran claims for service connection for malaria,
measles, and residuals of a facial injury are not supported
by cognizable evidence showing that the claims are plausible
or capable of substantiation.
3. The veteran’s recognized period of service occurred prior
to July 1, 1946, and his claim is not one of the exceptions
outlined in 38 U.S.C.A. § 107(a).
CONCLUSIONS OF LAW
1. The veteran may not be recognized as a former prisoner of
war for VA purposes. 38 U.S.C.A. § 101(32) (West 1991);
38 C.F.R. §§ 3.1(m), 3.1(y), 3.8, 3.9, 3.203 (1997).
2. The claims for service connection for malaria, measles,
and residuals of a facial injury are not well grounded.
38 U.S.C.A. § 5107 (West 1991).
3. The veteran’s service as a recognized guerrilla does not
constitute active military service for the purpose of VA non
service-connected disability pension benefits. 38 U.S.C.A.
§ 107(a), 1110, 1502, 1521 (West 1991); 38 C.F.R. § 3.1(d),
3.6, 3.8 (1997)..
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to former prisoner of war
status for VA purposes.
Criteria
38 C.F.R. § 3.1(y) defines a former prisoner of war as a
person who, while serving in the military, naval, or air
service, was forcibly detained or interned in the line of
duty by an enemy or foreign government, the agents of either,
or a hostile force. In the case of detention or internment
by an enemy government or its agents, VA shall accept the
findings of the appropriate service department that a person
was a prisoner of war during a period of war unless a
reasonable basis exists for questioning it.
"In line of duty" means an injury or disease incurred in or
aggravated during a period of active military, naval, or air
service unless such injury or disease was the result of the
veteran's own willful misconduct. 38 C.F.R. § 3.1(m) (1997).
38 C.F.R. § 3.203 provides only two methods of establishing
active military service: either by submission of a document
issued by a service department or through verification of
claimed service by such a department. In relation to
Philippine service, 38 C.F.R. § 3.9(a) provides that the
period of active service for a Regular Philippine Scout or a
member of one of the regular components of the Philippine
Commonwealth Army while serving with the Armed Forces of the
United States will be from the date certified by the Armed
Forces as the date of enlistment or date of report for active
duty whichever is later to date of release from active duty,
discharge, death, or in the case of a member of the
Philippine Commonwealth Army June 30, 1946, whichever was
earlier. Release from active duty includes (1) leaving one's
organization in anticipation of or due to capitulation, (2)
escape from prisoner-of-war status, (3) parole by the
Japanese, (4) beginning of missing in action status, or (5)
capitulation on May 6, 1942, except that periods of
recognized guerrilla service or unrecognized guerrilla
service under a recognized commissioned officer or periods of
service in units which continued organized resistance against
Japanese prior to formal capitulation will be considered
return to active duty for period of such service.
Guerrilla service is defined as persons who served as
guerrillas under a commissioned officer of the United States
Army, Navy, or Marine Corps, or under a commissioned officer
of the Commonwealth Army recognized and cooperating with the
United States Forces. The following certifications by the
service departments will be accepted as establishing
guerrilla service; (1) recognized guerrilla service and (2)
unrecognized guerrilla service under a recognized
commissioned officer only if the person was a former member
of the United States Armed Forces (including the Philippine
Scouts), or the Commonwealth Army. This excludes civilians.
38 C.F.R. § 3.8(d). The active service of members of
irregular forces "guerrilla" will be the period certified by
the service department. 38 C.F.R. § 3.9(d).
Factual Background & Analysis
A review of the record reveals that the veteran had
recognized military service from July 3, 1943 to February 10,
1946. While the veteran contends that he was a prisoner of
war from the second to the third week of May 1942, this has
not been verified. The service department records show that
his dates of recognized military service were subsequent to
the period he claims to have been held as a prisoner of war.
In addition, although the veteran has submitted affidavits
indicating that he had additional periods of service, there
has been no verification of this service by the service
department. Service department verification is necessary to
establish a veteran’s qualifying military service. The
service department has failed to verify that the veteran was
on active service when his reported capture during May 1942
by Japanese forces took place. As such, any period of
confinement at that juncture can not confer "prisoner of war"
status. See Duro v. Derwinski, 2 Vet. App. 530 (1992)
II. Entitlement to service connection
for malaria, measles, and residuals of a
facial injury.
Criteria
Before reaching the merits of the veteran’s claims, the
threshold question which must be resolved is whether he has
presented evidence that his claims of service connection are
well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy
v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded
claim is a plausible claim that is meritorious on its own or
capable of substantiation. See Murphy, 1 Vet. App. at 81.
An allegation alone is not sufficient; the veteran must
submit evidence in support of his claim that would "justify a
belief by a fair and impartial individual that the claim is
plausible." 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992).
In order for a claim to be well grounded, there must be
competent evidence of current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the inservice disease or injury and the current
disability (medical evidence). Caluza v. Brown, 7 Vet. App.
498 (1995).
Where the determinant issue involves a question of medical
causation or medical diagnosis, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Lay assertions
of medical causation cannot constitute evidence sufficient to
render a claim well grounded under 38 U.S.C.A. § 5107(a).
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Furthermore,
if there is no showing of the current existence of the
disability, the claim is not well grounded. Rabideau v.
Derwinski, 2 Vet. App. 141 (1992).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110. Regulations also provide that
service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1997). For the
showing of chronic disease in service there is required a
combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic."
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b) (1997).
A preexisting injury or disease will be considered to have
been aggravated by active military, naval, or air service,
where there is an increase in disability during such service,
unless there is specific finding that the increase in
disability is due to the natural progress of the disease.
38 C.F.R. § 3.306(a). Temporary flare ups will not be
considered to be an increase in severity. Hunt v. Derwinski,
1 Vet. App. 292, 295 (1991).
Clear and unmistakable evidence is required to rebut the
presumption of aggravation where the pre-service disability
underwent an increase in severity during service.
Aggravation may not be conceded, however, where the
disability underwent no increase in severity during service.
38 C.F.R. § 3.306(b).
Malaria
Factual Background
A careful review of the evidence of record reveals that the
only in-service medical report of malaria is on the veteran's
January 1946 Affidavit for Philippine Army Personnel. On
this affidavit, the veteran indicated that the he had had
malaria in June 1942.
On VA medical examination in December 1996, the veteran
reported that he had had malaria during World War Two (II).
He indicated that he currently had malaria and that he felt
weak. Physical examination revealed abdominal and joint
pain. There were no reports of findings of malaria or
residuals of malaria. The diagnosis was that the veteran did
not have residuals of malaria.
Analysis
The Board is of the opinion that the veteran has not
submitted evidence of a well grounded claim of service
connection for malaria. Although the service medical records
show that the veteran reported having had malaria, they also
show that this disease preexisted his period of active
service. In addition, there is no medical evidence that he
was treated for an increase in the severity of malaria during
his period of service. Moreover, there is no evidence that
the veteran currently has malaria or residuals of malaria.
Specifically, there were no findings of malaria at the time
of his most recent VA examination. As such, no competent
medical evidence has been submitted which indicates that the
veteran’s malaria increased in severity in service, or that
he currently has malaria. While the Board is sympathetic to
the beliefs of the veteran, the claim cannot be viewed as
well-grounded under these circumstances. Caluza, 7 Vet. App.
at 506.
Measles
Factual Background
A review of the veteran’s service medical records reveals
that he was diagnosed as having measles in January 1946. His
service medical records do not show a recurrence or treatment
of measles subsequent to January 1946.
On VA medical examination in December 1996, the veteran
reported that he had had measles during World War II. He
indicated that he currently had measles and that he felt
weak. Physical examination revealed that the veteran had
pain in the abdomen and joints. Measles or residuals of
measles were not found. The diagnosis was that the veteran
did not have residuals of measles.
Analysis
On the basis of the forgoing evidence, the Board is of the
opinion that the veteran has not presented evidence of a
well-grounded claim of service connection for measles. While
service medical records demonstrate that the veteran was
diagnosed with measles in service, there were no objective
findings or diagnoses that this disease was chronic. In
addition, the most recent VA medical examination does not
show that the veteran currently has measles or the residuals
of measles. Thus, the medical evidence of record does not
demonstrate that the veteran currently has measles. The
claim cannot be viewed as well grounded under such
circumstances. Caluza, 7 Vet. App. at 506.
Residuals of a Facial Injury
Factual Background
The veteran’s service medical records are devoid of any
reports or findings of treatment for a facial injury in
service.
On VA medical examination in December 1996, the veteran
reported that he sustained a facial injury in 1945 when his
gun backfired on to his face. He indicated that his injury
was treated at a field hospital but that he was unable to
remember what kind of treatment he received there. He
reported that he had since felt a numbness and a tightness on
the right side of his face. Physical examination did not
reveal any visible residuals of a facial injury. The veteran
was diagnosed as having a history of an injury to the right
side of his face with no visible scars.
Analysis
On the basis of the forgoing evidence, the Board is of the
opinion that the veteran has not presented evidence of a
well-grounded claim of service connection for residuals of a
facial injury. His service medical records do not show
complaints or treatment for a facial injury or facial pain.
In addition, while he was diagnosed as having a history of a
facial injury at the time of his VA examination, this
diagnosis was not rendered until 1996, more than 50 years
after separation from service. Moreover, there has been no
competent medical evidence submitted linking or relating the
residuals of the veteran’s facial injury to his period of
active military service. As such, the veteran’s claim cannot
be viewed as well grounded. Caluza, 7 Vet. App. at 506.
III. Basic eligibility for non service-
connected pension benefits.
Criteria
In accordance with 38 U.S.C.A. § 1521(a) (West 1991), the
Secretary shall pay to each veteran of a period of war who
meets the necessary service requirements and who is
permanently and totally disabled from non-service-connected
disability not the result of the veteran's willful
misconduct, pension at the prescribed rate. A veteran meets
the service requirements of this section if such veteran has
served in the active military, naval, or air service: (1) for
ninety days or more during a period of war; (2) during a
period of war and was discharged or released from such
service for a service-connected disability; (3) for a period
of ninety consecutive days or more and such period began or
ended during a period of war; or (4) for an aggregate of
ninety days or more in two or more separate periods of
service during more than one period of war. 38 U.S.C.A. §
1521(j) (West 1991).
In accordance with 38 U.S.C.A. § 107(a) (West 1991), service
before July 1, 1946, in the organized military forces of the
Government of the Commonwealth of the Philippines, while such
forces were in the service of the Armed Forces of the United
States pursuant to the Military Order of the President dated
July 26, 1941, including among such military forces organized
guerrilla forces under commanders appointed, designated, or
subsequently recognized by the Commander in Chief, South West
Pacific Area, or other competent authority in the Army of the
United States, shall not be deemed to have been active
military, naval, or air service for the purposes of any law
of the United States conferring rights, privileges, or
benefits upon any person by reason of the service of such
person or the service of any other person in the Armed Forces
except benefits under (1) Contracts of National Service Life
Insurance entered into February 18, 1946; (2) the Missing
Persons Act; (3) Chapters 11, 13 (exception § 1312(a)), and
23 of this title.
Factual Background
The service department has reported that the veteran had
recognized active service from July 3, 1943 to February 10,
1946 as a member of the Philippine Commonwealth Army and
recognized guerrilla service.
Analysis
The United States Court of Veterans Appeals (Court) has held
that “VA is prohibited from finding , on any basis other
than a service department document, which VA believes to be
authentic and accurate, or service department verification,
that a particular individual served in the U.S. Armed
Forces.” Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).
The Board also notes that “service department findings are
biding on VA for purposes of establishing service in the U.S.
Armed Forces.” Id. see also Dacoran v. Brown, 4 Vet.
App. 115, 120 (1993). Accordingly, favorable action in
connection with the veteran’s claim is not in order. As the
veteran’s recognized period of service occurred prior to July
1, 1946, and as obtaining a pension for nonservice-connected
disability, is not specifically listed in the exception
portion of 38 U.S.C.A. § 107(a), he does not have the
requisite service for entitlement to nonservice-connected
pension benefits. As such, his claim is absent of legal
merit and is dismissed. Sabonis v. Brown, 6 Vet. App. 426
(1994).
ORDER
Entitlement to former prisoner-of-war status for VA purposes
is denied.
The veteran not having submitted well grounded claims of
entitlement to service connection for malaria, measles, and
residuals of a facial injury, the appeal is denied.
The veteran’s claim for basic eligibility for nonservice-
connected pension benefits is dismissed.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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